Right to Reside: Proportionality arguments following the Supreme Court decision in Mirga

Friday 3 February 2017

Secretary of State for Work and Pensions v PS-B (IS) (Residence and presence conditions : right to reside) [2016] UKUT 511 (AAC) (Judge Jacobs), 12 December 2016

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Secretary of State for Work and Pensions v PS-B (IS) (Residence and presence conditions : right to reside) [2016] UKUT 511 (AAC) (Judge Jacobs), 12 December 2016

Secretary of State for Work and Pensions v PS-B (IS) (Residence and presence conditions : right to reside) [2016] UKUT 511 (AAC) (Judge Jacobs) concerned a Portuguese claimant who had been born in the UK in June 1997. She was brought up and educated in the UK and had not been absent for any significant length of time. Her father had always lived in Angola. At the age of 16, the appellant was abandoned by her mother, who returned to Angola. After this, she lived first with her aunt and then with her godmother. She then went to live in a hostel. In September 2013, she claimed Income Support, but this was refused on the basis that she did not have a right to reside in the UK. A First-tier Tribunal allowed the appellant’s appeal. While it accepted that the appellant did not fit into any established category of right to reside, it found that there was a gap in the scope of EU law, given her circumstances. The Secretary of State appealed. In response, the appellant argued that the Supreme Court in Mirga v SSWP [2016] UKSC 1 does not rule out the possibility of it being disproportionate to deny a right to reside to someone who is claiming an income-related benefit.

HELD: Appeal allowed, decision refusing Income Support restored. Judge Jacobs said he is bound by Mirga and had to decide what the decision means and how it should be applied. The Court in Mirga held that where a national of another member state is not a worker, self-employed, a student, or a self-sufficient person, it would severely undermine the purpose of the 2004 Directive if proportionality could be invoked to accord that person a right to reside and social assistance, save perhaps in extreme circumstances.

In Ms Mirga’s case, it was held that she did not have a right to reside, even though she had worked in the UK. The Upper Tribunal also rejects the argument that there was a gap in EU provision, holding that it follows from Mirga that the rejection of a general policy of proportionality was a good indication that the absence of a category allowing easier access to a right to reside was not an omission that the courts should fill.

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